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Monday, February 6, 2017

What Roe v. Wade May Bring

Bruce Walker

In the aftermath of the March for Life and in anticipation of dull feminist caterwauling over a conservative pick to fill Justice Scalia's Supreme Court seat, it is useful to consider precisely what Roe v. Wadedid – and what it did not do. Leslie Marshall recently said on Fox News that if Roe v. Wade is overturned, then women will have only three states in which to get an abortion.

Actually, at the time of Roe v. Wade, abortion was "legal" in almost every state in cases of rape and incest, as well as when the life of the mother was in danger. What Marshall meant is that abortion without any serious reason was legal in only three states. "Roe" in Roe v. Wade, who has regretted her involvement in this case to the present day and became a strong pro-life supporter, had lied about being raped in order to seek an abortion.

The repeal of Roe v. Wade would simply return to state governments the power to regulate abortion by making it always legal or simply legal under certain conditions. The Supreme Court in a decision repealing Roe v. Wade could simply hold that all state abortion statutes existing at the time of that opinion are now invalid but that any state government that wishes to pass new laws regarding abortion can do so.

How many states would pass such laws? There are a number of socially conservative states that would do so, but probably half of the states would not – enacting such a law would require both houses of the state legislature and the governor – which would leave America pretty much split in half, with the citizens of those states that oppose abortion on demand having state laws in tune with their values and the citizens of states that like easy abortion having the law in their states in tune with their values.

In fact, it would be better than that. Citizens of states have a vested interest in practical, moral state laws, which is why these citizens and their state legislatures do better than Supreme Court justices in determining what is homicide and what is not, what is rape and what is not. Any state legislatures could legalize homicide and rape tomorrow, but no state has ever done so.

Leftists who pine for the Supreme Court dictating everything related to abortion might want to consider what could happen if Trump and Pence are in the White House for the next twelve years, and the conservative justices of the bench outnumber the leftists by seven to two. That is hardly inconceivable.

The Supreme Court, under the Equal Protection Clause of the Fourteenth Amendment, might determine that an unborn child is a "person" within the meaning of that clause. If so, then it could – indeed, it should – also rule that that person cannot be deprived of life without representation of court-appointed counsel and a hearing to determine if it is in the best interest of that person to be killed. The unborn "person" would also have a liberty right protected under the Fourteenth Amendment.

There would be no maternal "right" to a child, because that child would be a "person" before birth as much as after birth, and this "person" would not be the property or the livestock of the mother, and this "person" would not simply a "part" of the woman during pregnancy. Ironically, these unborn "persons" would be granted the same status in law women were granted when their husbands were no longer automatically the "head of the household," which feminists long have ballyhooed as a triumph of human rights.

States could create a statutory presumption of fitness for law-abiding two-parent families but could also provide that a pregnant unwed mother on welfare and drugs has no right to custody of the "person" who moved from her body to society at birth, and that this "person" would either be placed in a foster home and the unwed mother ordered to pay child support or be placed immediately up for adoption if the mother wished to avoid paying child support.

Feminists who rejoice at the right to murder that person a pregnant woman carries inside her may wish to think about just what might happen if conservatives find that the only way to protect the unborn is to have the Supreme Court give these helpless unborn babies the same rights leftists demand for illegal aliens and convicted criminals.